(Posted September 15, 2016) Today we get three more published opinions from the Supreme Court of Virginia.

Legislative privilege

Easily the highest-profile decision of the day is Edwards v. Vesilind, which was one of two cases argued in the court’s rare special session in July. While the underlying litigation is about partisan redistricting, this appeal involves a discovery dispute and turns on legislative privilege.

In the course of trial preparation, the petitioners in the circuit court sought documents relating to legislators’ efforts to craft legislative districts, an overtly political process in Virginia. They issued subpoenas to the Division of Legislative Services and to some outside contractors whom the legislators had hired to produce computer- generated maps. They also requested production of documents directly from the legislators, who were parties to the case.

The legislators asserted privilege based on the Speech or Debate Clause in the Constitution of Virginia. After receiving argument, the trial judge decided that the privilege didn’t apply, so he compelled production. The legislators sought approval for an interlocutory appeal, but the petitioners below wouldn’t consent to that, so the court couldn’t order it.

The legislators found another way to secure prompt review of the issue: they asked the court to hold them in contempt, which would separately be an appealable order. The petitioners didn’t mind that, so the court found the legislators in contempt, at which point they appealed to the Court of Appeals. The parties agreed to ask the Supreme Court to certify the appeal – a process by which the justices can grab a case off the CAV’s docket without awaiting a final ruling – and the justices cooperated.

Today the Supreme Court vacates the contempt finding. The court analyzes the contours of the Speech or Debate Clause, discussing its history in the English Common Law and in the federal Constitution, which has a similar provision. The justices today unanimously rule that the Clause protects the legislators’ documents from disclosure, and by extension applies to legislative staff, to DLS, and even to the outside contractors who prepared the maps. The court finds that as long as the contractors are performing an act that would be protected if the legislator did it himself, then the privilege applies.

Importantly, the holder of the privilege is the legislator, so if the contractor or DLS had wanted to waive it, the legislators could prevent that.

The redistricting litigation is by no means over; the case goes back for further factual development and a likely trial. The petitioners below don’t come away from this empty-handed, because one legislator agreed to waive his privilege and produced documents. He wasn’t involved in this appeal, and my best guess is that the petitioners may find some evidentiary goodies in his batch of documents.


Today’s opinion in Miller & Rhoads Building LLC v. City of Richmond will interest exactly two types: tax jocks and those with a keen interest in issues of statutory construction. Here’s the setup:

Richmond imposes local taxes on real estate within the city limits. Certain areas also constitute special service and assessment districts; there’s an additional tax on properties in those areas.

There’s a building in downtown Richmond that’s bordered by Fifth, Sixth, Broad, and Grace Streets. It was formerly the Miller & Rhoads department store, and lay vacant for many years before a limited liability company bought it in 2006 to turn it into a hotel and condominium residences. (In case you’re wondering, it’s the Richmond Hilton. I’ve stayed there; it’s quite nice.)

Richmond’s tax ordinances also contain provisions for partial tax exemptions for rehabilitated properties. This project was emphatically rehabilitative, so the LLC sought exemption from the regular and special-district taxes. The City agreed as to the ordinary taxes, but refused to apply the partial exemption to the special-district taxes. A circuit court judge agreed and refused to order a refund of the taxes, which had been paid under protest. The LLC got a writ.

The trial judge had ruled that the special-district tax wasn’t a real-estate tax at all, so the exemption didn’t apply. No one on the Supreme Court is happy with that analysis; it probably helps that in oral argument, the City Attorney admitted that the special-district assessment was “a tax on real estate.”

That means that the justices can’t affirm based on the original ruling. Four members of the court choose another path to get to the same destination. Justice Powell writes the majority opinion. She holds that a separate ordinance says that special-district taxes “shall be subject to the following sections” and then lists four of them. Since the partial-exemption ordinance isn’t among them, the majority concludes – based on the expressio unius canon – that there’s no partial exemption for the special-district assessment.

Justice Kelsey disagrees, noting that expressio unius isn’t a doctrine to be applied liberally, or with a blind eye toward the statutory [here, ordinance’s] phrasing. He points out that the four enumerated ordinances each deal with the subject of collection of the tax; not its application. There would be no reason, he feels, for the ordinance to even mention the partial exemption, since it dealt with a wholly different subject. Given that view, he would reverse the circuit court and relieve the LLC of the extra tax.

Criminal law

It’s shameful, but I will admit to a fondness for stupid-criminal stories. We’ve covered a few good ones here at VANA. Probably my favorite is McDowell v. Commonwealth from 2007, where a grand-larceny suspect was caught several hours after stealing stuff, but insisted that the store couldn’t establish the value of what he stole, since it was never found. Unfortunately for him, he chose to commit his felony four hours after the store had completed inventory, so they were able to figure out exactly what he’d taken. Then there was Patrick v. Commonwealth from the same year, where the Court of Appeals took up an appeal by a hapless thief of scratch-off lottery tickets. He wisely went to a different store to cash in the winning ones; the store clerk there was someone who knew him well and was readily able to identify him to police.

Today’s sermon is Collins v. Commonwealth, and implicates a traditional American pastime, speeding on motorcycles. But this was no off-the-rack bike; it was an orange-and-black Suzuki with an extended frame. One purpose of that frame is to modify the bike for drag racing.

As it turns out, there’s no drag racing in today’s tale; Collins just high-tailed it from the police on two discrete occasions when they tried to pull him over. The two gendarmes eventually put their heads together and figured they had the same guy – same color and style bike, same clothing, same general vicinity.

One of the officers’ cars had a mounted camera, and before our hero sped off at 140 mph, he was able to get a screen shot of the license plate. He ran it through DMV and noted that the tag was long-inactive, but it did give the name and address of the last registered owner, one Jones. A visit to Jones revealed that he had sold the bike to Collins a few months before the police encounters, specifically telling the purchaser that there was no title because the vehicle had been stolen.

Stolen property? Now we’re leaving the realm of eluding and reckless driving.

A couple of months later, the officers learned that Collins was at a DMV, trying to register a stolen car. They quickly appeared at the office and questioned Collins about the bike after Mirandizing him. Nope, Collins told them; not me. “I haven’t ridden a motorcycle in months.”

Okay, ready for the comic relief? One of the officers did a quick search on Facebook and found Collins’s page. It contained two photos of our hero standing next to a motorcycle – the motorcycle, all orange and black and everything – in front of a house. He showed Collins the page, but Collins denied knowing anything about the bike or the house.

The officers let Collins go, then found out where the house in the picture was. One of them went to the scene and discovered what obviously looked like a motorcycle with an extended frame in the driveway, mostly covered by a tarpaulin. It was in the exact position shown in the photos on Facebook. He approached it, lifted the tarp just enough to see the distinct orange-and-white coloring, and wrote down the VIN. A quick search confirmed that the bike had indeed been stolen. He re-covered the bike and retreated to a discrete location to watch.

You already know what happens next: our hero shows up at the house and goes inside. Remember, this is the house he knows nothing about. The officer approached, knocked at the door, and guess who answers the door? When questioned about the bike, Collins began with, “I don’t know anything about it.” When that obviously wouldn’t fly, he tried, “It belongs to a friend, but I don’t ever drive it.” And finally, “Yeah, I bought it from Jones, and there’s no title.”

We have one last chapter in our stupid-criminal story. Collins appeared at the door having changed clothes from his visit to the DMV. He had swapped his flip-flops and shorts for jeans and “Timberland style boots,” just the outfit the two officers had seen on their fleeing cyclist. In the search-incident after Collins’s arrest, what do you suppose the officer found in the rocket scientist’s pocket? The keys to the motorcycle.

Okay, based on this we all know Collins is guilty, but the legal issue here stems from the Fourth Amendment. Did the officer have the right to peek under the tarp, which was on private property, without getting a warrant? The trial judge turned aside a motion to suppress, and the Court of Appeals affirmed. The CAV’s rationale was that the officer’s search “was justified under the exigent circumstances exception to the Fourth Amendment’s warrant requirement.” The CAV declined to address the Commonwealth’s alternate contention that the Fourth Amendment is subject to an exception for automobiles.

That exception is actually quite well-developed, and that turns out to be the grounds upon which today’s majority affirms. Given the inherently mobile nature of vehicles, SCOTUS has carved out an exception for the warrant requirement, holding that officers can search cars where they have probable cause to believe that they contain contraband.

Ah, but what if, as here, the vehicle is the contraband? In that case, isn’t this a search of the tarp? There’s no tarpaulin exception to the Fourth Amendment. On this point, a single justice departs: Justice Mims believes that the search was impermissible. He acknowledges that the officer could look all he wanted to from the street, and feels he could even step into the driveway to get a closer look; but no touching allowed, and specifically no peeking under the covering.